North Carolina prosecutors control the criminal calendars. This means that prosecutors, if they are so inclined, can delay trials. Unfortunately, there is no statutory right to a "speedy trial." Like every other state in the U.S. that does not have a specific state law speedy criminal trial mandate, North Carolina uses the constitutional speedy trial factors used in Barker v. Wingo, a 1972 United States Supreme Court case.
In Barker, recently cited by the North Carolina Court of Appeals in North Carolina v. Wilkerson, a court should carefully weigh four factors in determining whether to grant a criminal defendant's motion to dismiss for violation of his right to a speedy trial:
- the length of the delay
- the reason for the delay
- the defendant's assertion of his right
- the prejudice to the defendant
None of the factors are determinative; they must all be weighed and considered together. In Wilkerson the Court of Appeals confirmed that a court weighing these factors uses a "difficult and sensitive balancing process" involving the "fundamental rights of the accused." Accordingly, the Court ruled, a court doing so must make specific findings supported by the record in its ruling on the issue.
A defendant asserting a violation of his right to a speedy trial has the burden of showing that the delay was a result of "neglect or willfulness" of the prosecution- a lengthy delay is considered a facial showing of this factor. In Wilkerson, after a delay of several years, the Defendant was able to show the Court that a key witness of his had died. He also established that other witnesses who his lawyer had previously been in contact with could no longer be located when the case was finally scheduled for a trial. Using the Barker balancing factors, the Court of Appeals cited the Superior Court's "limited record" but held that the Defendant had tended "to show his Sixth Amendment right to a speedy trial may have been violated." The case was remanded to the trial court for at least the second time, for that court to hold a full evidentiary hearing for the Superior Court to hear and make an appropriate assessment of Defendant's arguments.
The Court in Wilkerson confirmed that if a defendant's constitutional right to speedy trial is violated, the only remedy is dismissing the indictment and vacating the convictions.